What did the European Court of Human Rights rule in the Irish abortion case?

Human RightsEverything and its opposite has been said about this new ruling of the ECHR. In this post, I’m trying to expose with a cold head what exactly was said by the court and what the scope of the ruling is. But yes, I’ll allow myself to express an opinion in the conclusion...

First, it should be understood what the ECHR is. It is a court whose authority overrules that of any of the member states. Its rulings take precedence over even the states' constitutions.

It is not, though, a last-resort appeals court in all cases as its jurisdiction remains strictly within the boundaries of the topics covered in the European Convention on Human Rights. That convention is in turn based on the 1948 Universal Declaration of Human Rights but it is not equivalent to it. For example, the UDHR establishes no limitation to the right to life whereas the ECHR still has some provisions for states to retain the death penalty. In other words it's somehow watered down to diminish the barrier to entry. One thing to point out is that the ECHR is bounding for states whereas the UDHR was more a statement of intentions the following of which by states is enforced by no court of law.

The new ruling by the ECHR is responding to a claim based on Articles of the Convention 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 8 (right to privacy) and 14 (prohibition of discrimination). Now this seems strange at first: what could privacy possibly have to do with abortion? Well, in order to understand that you need to know about abortion law in Ireland as well as about the three particular cases of the applicants.

Since 1983, the Irish Constitution protects the life of the unborn within the limits of equal protection of the life of the mother. This means that it is in principle legal to get an abortion if the pregnancy threatens your life (and that includes suicide). In 1992, the Constitution was amended again to allow for women to freely travel abroad in order to get an abortion without risking to be prosecuted in Ireland (where the penalty is life imprisonment).

Of the three applicants, two aborted for health and well-being reasons and the other because her life was threatened by the pregnancy.

Article 2 thus really only could have applied to the third applicant, but all three were free to travel to get that abortion so nobody's life was directly threatened by the Irish Constitution.

Article 3 was ruled out by the Court as the psychological and physical burden of traveling to get an abortion was not inhuman or degrading.

Article 8 is more interesting and is where the confusion comes from. The court confirmed that it would be a stretch to interpret it as giving a right to abortion. BUT it did also state that prohibition of abortion was "within the scope of the applicant's right to respect for their physical and psychological integrity, hence within their private lives, and thus under Article 8".

If that sounds a little schizophrenic to you, you're not alone. If I may rephrase, they are saying that Article 8 does provide some guarantees to citizens that the State can't interfere with a their right to do what they want with their bodies. But as we've alluded to before about the death penalty the Convention is more accommodating to states than the UDHR. In the case of Article 8, this comes under the following form:

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Did you notice that thing about "morals"? That's the loophole. This is the part that is arbitrary and allows a state to completely destroy the spirit of the Article. Case in point, the Court indicated in its press release:

"That interference had been in accordance with the law and had pursued the legitimate aim of protecting public morals as understood in Ireland."

As understood in Ireland.

In summary, the Court is not saying the Irish Constitution is in accordance with the Article in essence but rather that it is departing from it in a way that is compatible with its restrictions.

That was for the first two applicants, which is a clear victory for the anti-abortionists.

Now the third case -where the life of the applicant was threatened- was ruled separately and is something else entirely. In this case, the court ruled that Ireland had not effectively made the due diligence to provide that woman with the means to exert her rights to an abortion as guaranteed by the Constitution. Ireland is condemned to pay her 15,000 Euros.

That is for the third applicant, which is a clear victory for pro-abortionists.

This is not the first time the Court rules about abortion. There have been quite a few cases before. It should be pointed out that these three recent cases were a little convoluted as they were going through the article about privacy, but not directly touching to the bottom of the issue, which is to determine whether the fetus has rights and what  these rights are. Previous rulings on this were far more explicit:

"In 1980, the Court ruled out the foetal right to sue the mother carrying the foetus. In Paton v. United Kingdom, it was decided that the life of foetus is "intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman".{Paton v United Kingdom (1981) 3 EHHR 408 at para 22}"

It is not surprising that both extremes of the ideological spectrum on this issue would pretend that these rulings favor their views: the Court actually provided two distinct rulings that although not contradictory do go in opposite directions.

Let's face it: Europe is massively pro-abortion with only a handful of smaller states out of the 27 still having hard anti-abortion laws.

If the Irish society follows the path of other European nations, in a generation or two the consensus about abortion and morality may be quite different. When that happens, the "public morals" argument used by the court in the first part of the ruling will not apply anymore and the Constitution will need to be amended again.


I certainly didn't expect it...

Coffee break is sacred. The Spanish Inquisition, I mean. Then again who does?

I’ve been having this discussion with Ambrose for a few months now and I’m grateful to him for being open to discussion and for spending the time to answer me. It started with him boldly declaring that:

The Inquisition was a good thing for its time.  You don't even have to be Catholic to think so, if you'll just look into the facts and how it was a civilizing and taming influence in otherwise extremely brutal times.

I then answered in essence:

No, really, you shouldn't defend Inquisition and pretend it was a benevolent organization. Please, be an adult and recognize when something you or an organization you belong to screwed up. It will elevate you, whereas the defensive position brings you down to the level of the guilty.

And a couple of months ago Ambrose answered my answer.

In this post, I’m going to comment and answer that last post (which I haven’t done earlier because I’ve been lazy). I think it’s an important and interesting discussion because it captures essential differences in perspective between Humanists and Catholics (and other deists).

Apparently, Bertrand didn't read even the rather short article I referenced, by historian Thomas F. Madden, much less consult the book I referred to.

Mmh. Yes I did read the linked article (I do find it a wee bit insulting that Ambrose would think I didn’t), it’s just that I didn’t swallow it whole. I admit I did not read the book as the article provides enough material and references for discussion. I’ll give you a sample of the post, but be warned, it’s from the National Review...

[…] the Inquisition was not so bad after all. Torture was rare and only about 1 percent of those brought before the Spanish Inquisition were actually executed. […] The Inquisition was not born out of desire to crush diversity or oppress people; it was rather an attempt to stop unjust executions.[…] it was not so easy to discern whether the accused was really a heretic. […The Inquisition] was born out of a need to provide fair trials for accused heretics using laws of evidence[…] As shepherds, the pope and bishops had a duty to bring them back into the fold […] the Church was trying to save souls. […] Compared to other medieval secular courts, the Inquisition was positively enlightened […] before 1530 the Spanish Inquisition was widely hailed as the best run, most humane court in Europe.

In other words, the Inquisition was a civilizing force and what you have learned about it in school is just “Protestant propaganda” and silly ideas from “French philosophes”. Right.

I did address that in my previous post, but Ambrose seems to have skipped that passage so let me quote myself:

[…] this isn't even historically accurate but rather a negationist opinion: the aptly named Innocent IV authorized torture as a means to extract the truth in 1252 and it was widely used thereafter. It was even later extended to witnesses. Priests were allowed to absolve each other of their atrocious acts. And most of all, it was not the Church defending the innocent against civil authorities, it was pope after pope enjoining the civil authorities to execute the sentences under pain of excommunication. It's of course all duly recorded by the Church itself.

The only redeeming part in all this seems to be about saving souls as that appears to show good intentions. On the contrary I find that to be the most incriminating as it clearly shows how faith can convince people to commit the most atrocious crimes for a hypothetical greater good.

Although it’s important to get one’s facts straight, Ambrose misses the point entirely: it does not matter that the Church was torturing heretics in a kinder way than secular courts of the time or for kinder motives. What does matter is that the Church was torturing.

The whole enterprise is indefensible from a humanistic perspective because:

  • Torture is indefensible, for any motive.
  • Heresy is an entirely imaginary crime, one that has no victim.
  • There were clearly moral and honorable alternatives.

The Church was judging people for an imaginary crime, using the least humane methods. At the risk of repeating myself, what is defensible about that?

That was the essence of my post and I haven’t changed my mind. Now there are other points in Ambrose’s answer that I want to address.

I appreciate that Bertrand, unlike the militant atheists in the Dawkins and Hitchens crowd, seems to recognize there is goodness in religion, even if it only extends in as much as religious people share his humanistic values.

Well, at the risk of disappointing Ambrose, not exactly. Actually, like Hitchens and Dawkins I don’t think any of the goodness I see is especially dependent on religion. As to the second part of the comment, it is rather tautological as reversing it shows: I appreciate that Ambrose recognizes there can be goodness in Atheism, even if it only extends in as much as atheists share his moral values. We recognize goodness in others inasmuch as it coincides with our idea of good. Duh.

Ambrose’s next point is the following:

Even if you disagree with the premise that religious belief is a matter for public judgment (and the corresponding execution of sentences based on that judgment), it remains that this is not a question of denying human dignity but rather of what is a matter for public judgment.

Well, yes I do strongly disagree with that premise (and I hope Ambrose does too to be frank). But he is beating a strawman here: it’s not the trial that is a denial of humanity, it’s the torture.

Then Ambrose’s post get weird and imprecise:

[our contemporaries] use arbitrary and unverifiable criteria based on conjecture--not established judicial procedure by a qualified judge--to determine if a life has human dignity.

I’m really not sure what he’s referring to here, and I don’t want to conjecture. It would be useful to have more specifics, such as those in the next paragraph:

I don't know where Bertrand stands on life issues, but Catholics certainly are at the forefront in defending human life and human dignity, from conception to natural death.

And by “life issue” I’m supposing Ambrose means “abortion issues.” He wrote a whole post on it a while ago that looks charitable on the surface but is really making all kinds of unfounded assumptions. I have a position that probably won’t surprise much but I’ll devote a whole post to it because that’s not the kind of issue you resolve by grossly oversimplifying it.

The claim about Catholics being “at the forefront in defending human life and human dignity” is just bizarre to me. How exactly are they doing that? By glorifying suffering? By spreading disinformation and lies about proven ways to fight Aids (of which millions still die every year, many of which could be saved by proper prevention techniques)? By denying homosexuals dignity?

Speaking of dignity:

For humanists to pretend that belief in the dignity of the human person is an invention of the so-called Enlightenment is just preposterous.

And who exactly pretended that? It would indeed be a preposterous claim that I certainly never made. We are again beating a strawman here (nice use of “so-called” by the way). As I said in comments to the previous post:

The Golden Rule was well understood in the dark ages and about as far back in history as we have records. It's even in the freaking Book(s). It seems to come from empathy, which is a quality that all apes seem to share. It's part of what makes us human.

We then have a long argument denying that the Church as an institution believes itself sacred and above human laws through “not too fine” and “pretty straightforward” theological points:

No individual possesses [perfection] unqualifiedly before "getting to heaven."

Oh, so it’s an empty promise then: the Church will be perfect once everybody’s in Heaven. Of course, we will never get to verify that. As for what happens during this life:

[…] the very qualified and rare way that definitive, active infallibility is exercised in the Church and, as noted, only there have been only two known infallible definitions by a pope. So there is no burden on the faithful Catholic to defend every proclamation of a bishop or even the pope as if it were infallible.

That is a fine theory, but in practice and in my experience, many priests do believe themselves to be morally superior. It comes with the profession. Ambrose says it himself:

[…] priests should be better--they're supposed to be examples to us all!

Yes, there’s hope:

it is entirely unnecessary to defend, for instance, the decision of a pope to authorize torture as a tool in the inquisitions. […] I am of the conviction that we should recognize and address the serious failings of priests (and bishops and popes), both past and present.

Ah, at last. Ambrose could have just said that without all the tergiversation. Alas it doesn’t last:

[…] perhaps in that time and culture it was understandable. Would it have been better had torture not been authorized? Almost certainly, but it would be anachronistic of me to suggest that he should have known better.

Well, no. It never was understandable or forgivable. Especially coming from the moral and intellectual elite of its time. The Golden Rule, as I said above, has been known and understood as far back as we have historical traces. There is no way that a sane human being, under any time period, would consider creating such hell on Earth as torture without the support of a mind twister such as fanaticism or hate.

Dare I say it? This is nothing but the cheap kind of relativism conservatives keep accusing us godless liberals of. It may surprise them but we do have absolutes even if we usually tend to avoid thinking in black and white and to attempt to base them on rational thinking. Opposition to torture is one of them.

To conclude, I’d like to transpose one last quote of Ambrose’s into a different but comparable situation:

[…] if the Church had refused to participate as it did, it seems to me that far worse would have happened.

How the hell do you know? That is an old and tired excuse that is often used to rationalize morally indefensible decisions: juxtapose it with a hypothetical alternative and by all means don’t even consider that there might be anything outside of the false dichotomy.

Would more have been killed if the US hadn’t ended the war with Japan by unleashing nuclear power onto non-military targets? It doesn’t matter: it was wrong, don’t do it. Be more creative about alternatives. Don’t forget that there is always a moral and honorable choice and that you never have to compromise with evil. Unless you’re evil yourself.

I’d like to reiterate that despite all this I’m grateful to Ambrose for a civil and thoughtful discussion. I always appreciate conviction and debate even when I disagree.

Ite in pace.


Be inquisitive

Nobody expects the Spanish Inquisition!Recently Ambrose pointed me to one of his posts in response to a snarky comment I made about the Inquisition on Twitter. His summary goes like this: "The Inquisition was a good thing for its time. You don't even have to be Catholic to think so, if you'll just look into the facts and how it was a civilizing and taming influence in otherwise extremely brutal times."

The argument is that the Inquisition wasn't doing the torturing and killing themselves, but rather that their role was to determine who was "innocent" and who was "guilty" and then hand them over to the competent authorities who would then proceed with the torturing and killing (which they were fully aware of). Of course, the crime these people were "guilty" of was to believe differently or to not believe at all.

I'd like to point out that this isn't even historically accurate but rather a negationist opinion: the aptly named Innocent IV authorized torture as a means to extract the truth in 1252 and it was widely used thereafter. It was even later extended to witnesses. Priests were allowed to absolve each other of their atrocious acts. And most of all, it was not the Church defending the innocent against civil authorities, it was pope after pope enjoining the civil authorities to execute the sentences under pain of excommunication. It's of course all duly recorded by the Church itself. But that's besides the point: even if Ambrose was right, which he's not by very far, the whole enterprise would still be condemnable.

Let me draw a little parallel to this. During WW2, the Maréchal Pétain accepted to lead the governement of then occupied France. The apology for it was that it would be better to have a respected French soldier in place rather than to let the Nazi have full power. Of course, the Nazi did effectively have full power and Pétain's role was just to pretend to govern and make it acceptable. He and others really were convinced that they were a civilizing and taming influence in otherwise extremely brutal times. The reality was quite different. Under his rule, Jews were deported as in the rest of occupied Europe, and the French police even collaborated with that atrocious enterprise. But of course, most of the time they weren't doing the torturing and killing themselves, they were just verifying the people arrested were Jews, and then handing them over to the Nazi, with a pretty good idea of what would happen to them.

Mmmh. Reminds me of something...

The honorable path during the war was not to be accomodating but to resist the Nazi ennemy, to do everything in your power to save your fellow human beings from the monsters who would kill them only because they were Jews, homosexuals or Gipsies.

In the same way, the honorable and truly civilizing path for the Church during the Dark Ages -and they had all the power to do it- would have been to give a message of tolerance.

No, really, you shouldn't defend Inquisition and pretend it was a benevolent organization. Please, be an adult and recognize when something you or an organization you belong to screwed up. It will elevate you, whereas the defensive position brings you down to the level of the guilty. I can't help but draw another parallel here with the recent pedophilia affairs. The attitude that consists in systematically defending the Church and covering up for hideous crimes, thus perpetuating them, is just not the attitude of responsible adults.

I hold the opinion that this is in large part caused by the fact that this organization believes itself to be holy and infallible.

The second component that explains this attitude in my opinion is the very explicit segregation of Humanity that comes with all of the three great monotheistic religions. Their holy books all place apostasy as one of the greatest of all sins. They all divide Humanity in two categories: those who believe in the One True God, and those who don't. Those who don't are considered sub-human and are promised eternal fire.

Contrast that with the philosophy that underlines the Enlightenment: humanism. If you are a humanist, you consider all humans as equally deserving respect. All of Humanity has the same rights, no matter what they believe in, be it a man in the sky, the Holy Trinity, Allah, the Flying Spaghetti Monster, Zeus or even nothing at all. The pigmentation of their skin doesn't matter, nor do their sex, their sexual orientation or their political opinions.

If you are a humanist, you must recognize the atrocities that the Terror was during the French Revolution. You have to recognize the absolute evil that was Nazism: the exclusion from Humanity and extermination of millions because of their origin or beliefs. You have to recognize the abomination of Communism and its disastrous consequences and millions of victims. Just as well as you must recognize the misled atrocity of Inquisition, of the persecution of the Jews throughout the ages. All were a negation of our universal Humanity.

I cannot think of a single reason why one would unconditionally support the worst that religion has done and still does today. There are plenty of religious people who embrace humanism as something fully compatible with their faith, and who are not embarrassed to recognize evil when they see it.

Instead of apologizing for the indefensible, you should be the first to forcefully reject the parts of your own religion that are archaic, barbaric and evil. That should only reinforce the core of it, which I understand is supposed to be love. Or maybe it could open your mind to moral principles that are more universal than any religion can ever be, because they are the essence of what makes us human rather than just tradition from millenia ago.